Challengers in Zubik File Further Briefs

The Supreme Court did something surprising last month -- Justices asked challengers in Zubik v. Burwell to file briefs examining other ways that women might access contraception if the Affordable Care Act's mandate were not applied to them (non-profit religious employers). Today, those challengers filed their briefs.

This is clearly connected to the Religious Freedom Restoration Act, the law that Justices use to balance government (public) interests against religious liberty concerns. The RFRA says that government action can only burden someone's religious freedom if the government is acting toward a compelling public interest and acting by the least restrictive means to that end. This last part is where the government lost its case against Hobby Lobby, because Justices were not convinced that the birth-control mandate was the least restrictive way to make sure women had access to contraception (a public interest).

Remember, Zubik is different from Hobby Lobby because challengers in Zubik have been offered an "accommodation" under the mandate. Under the accommodation, non-profit employers must file some paperwork, essentially referring their workers to a third party to provide the coverage for the offending forms of contraception.

"The Supreme Court asked if any way exists to offer contraceptive and abortifacient coverage without making Christian schools, nuns, and priests complicit in providing them. The answer we gave the court today is yes. There are many ways in which all women could receive cost-free contraceptive coverage that wouldn’t require involvement by religious non-profit groups. The government could offer separate avenues for contraception coverage that do not hijack the non-profits’ insurance plans. The Supreme Court should rule in favor of the non-profits in light of the numerous means the government has to achieve its objectives without violating anyone’s religious liberty.”

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